Poland’s democracy is crumbling

This week marks a stunning escalation in the battle over Poland’s Constitutional Court.

The ruling right-wing Law and Justice party (PiS) passed a sweeping amendment to the law regulating the Court. When signed by the president, this new law will force Poland to face a deeply uncomfortable new reality: Without international help, Poland’s democratic future may truly be in danger.

In October, the outgoing parliament dominated by the liberal Civic Platform filled five upcoming vacancies in the Court. Three judges were elected for slots which opened in early November, before the start of the new parliamentary term. Two were chosen to succeed judges whose term would end in December.

The Constitutional Court reviewed the validity of these elections. In a December 3 decision, it held that the first three judges were elected properly but the two judges who would replace those whose term ended in December were not.

But the new, right-wing-dominated parliament did not wait for that decision. A night before the ruling it elected five new judges, whom President Andrzej Duda, a PiS ally, promptly swore in.

Without international help, Poland’s democratic future may truly be in danger.

Duda refused to receive the oath from the three November judges, even after the Court made it absolutely clear that it was his constitutional duty. The chief judge, in turn, does not want to allow the replacement judges to hear cases. And the Court is not backing down either.

With just three more judges retiring in the near future, winning the battle over all five of these replacements is the only way PiS can secure the majority of eight judges in the Court before the end of the Parliament’s term.

This is where the newly enacted law comes in. Its primary goal is unambiguous: force the Court to accept all the five replacements by increasing the quorum required for the Court to decide the vast majority of cases.

Until now, most decisions have been made in panels of five judges. Even the most significant cases required only nine judges present. The new law provides for almost all cases to be heard by at least 13 judges.

The Court is given a choice: Validate the illegal appointees or be unable to hear any cases at all.

Why 13? The math here is straightforward. There are 10 uncontested judges, two presumably legal choices of the new Parliament to fill the December seats, and three clearly illegal replacements for the unsworn (but properly elected by the previous government) November judges.

Since the Court cannot allow in unsworn judges, the only way for it to reach 13 is to accept at least one illegal replacement of a November judge. In short, the Court is given a choice: Validate the illegal appointees or be unable to hear any cases at all.

Indeed, without accepting the illegal appointees, the Court will not even be able to challenge the increase in the quorum itself.

The law will go into effect immediately after publication — an unprecedented move in Polish constitutional tradition. Since every law is binding until the Court finds it unconstitutional, the decision on the amendment’s constitutionality will itself require the panel of at least 13 judges.

To understand what is really at stake in Warsaw we need to juxtapose the “quorum trick” with other provisions of the PiS amendment. These additional measures seem custom-made to paralyze the Court.

Cases, for example, will need to wait in a docket for at least six months before they are decided (the chief judge will have an extremely limited power to cut this waiting time by half in exceptional circumstances). The cases need to be heard, with no exceptions, in the order in which they are received. Any law can be declared unconstitutional only by a two-third majority of judges.

The truly alarming question is why the government wants to paralyze the Court which, thanks to the quorum trick, will likely soon be dominated by the judges of the government’s own choosing.

There is only one logical explanation — one that was still unthinkable just a few weeks ago. The government may be planning to pass laws so blatantly unconstitutional that even the judges now appointed by PIS may hesitate to approve them. The additional, draconian constraints on the Court mean that even if such opposition emerges the Court will hardly be able to act.

The truly alarming question is why the government wants to paralyze the Court.

Let’s fast-forward to spring 2019. Imagine we’re five months and 29 days before the next general election, and the Parliament passes a sweeping reform of the electoral law that all but eliminates the ability of the opposition to compete.

Even the judges appointed by PiS find the law unacceptable, but what can they do? The Court must wait for six months, or after the election itself, before it hears the case.

The Court is also inundated with frivolous petitions from the government that, based on the order of receipt, must be heard first before turning to the matter of electoral law. And it takes only six judges (one third plus one) to block a decision holding the law unconstitutional.

Nobody is eager to confront the fact that the very future of Poland as a multi-party democracy is at risk and that the country will not be able to solve its current crisis internally.

PiS rightly recognizes Western criticism as the only real check to its power. That is why PiS party leader Jarosław Kaczyński openly called anyone who wants to involve Western institutions in national affairs a traitor.

Liberals have also been hesitant to internationalize the issue. Two weeks ago, the European Parliament tabled a discussion about Poland, not at the request of PiS but of the liberal Civic Platform. For people like former Prime Minister Donald Tusk, acknowledging the gravity of the crisis means shattering the happy narrative that Poland is a liberal success story — a narrative instrumental to Tusk’s election as President of the European Council.

And the truth is that it was precisely the liberal disregard, and sometimes open disdain of voters and their growing economic anxieties that set the ground for the anti-democratic direction we now see in Polish politics.

PiS rightly recognizes Western criticism as the only real check to its power.

The country’s lawyers are, likewise, in denial. Every day, they present exotic ideas for how the Court can outsmart the Parliament. The November judges should mail the president their oaths. The illegal judges should be dismissed based on the Court’s power to institute disciplinary proceedings (the newly enacted amendment closes this option by requiring Parliament to confirm any disciplinary dismissal). The Court should ignore the new law and decide based on the Constitution. Or it should use the Civil Procedure by analogy and issue an injunction preventing the publication of the law.

But these attempts at legal trickery are just a desperate attempt to push aside the truth: The constitutional system that Poland’s legal elite so proudly constructed is crumbling.

Warsaw’s Western partners are understandably unhappy to wake up from the comforting dream of Poland as a bright spot on the conflict-ridden European map. Leaders in Brussels, Berlin, and Washington need to consider the options at their disposal: Defending the independent Court now will be much easier than dealing with what may soon be in store — an endless series of confusing, minute legal measures all aimed at gradually pushing Poland towards authoritarianism.

Maciej Kisilowski is assistant professor of law and public management at Central European University in Budapest, Hungary.

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pexi

What a deformation of the reality…the civil platform knowing that she will loose the election try illegally to appoint new judges to hold all 15 positions in the constitutional court to block and paralyze the parliament and the higher chamber. It’s quit obvious that they are not in position to decide what is legal or not about their own case but they did an it’s normal that they voted in their own case to not be fired…the situation even with the appointing of 5 new judges will be 10 judges placed by the civil platform and 5 by PIS, is this not enough for a party which looses last two elections? And when you look at the CV of this 10 civil platform judges you can see that all are previous member of the communist party…and if there is a democratic problem in Poland it’s more linked with the civil platform which made a lot of corruption affair and which is trying to protect their former crime companion and a lot of them are in western companies and in European institutions and they try to block the legal process by the created problem of the constitutional court and negative PR of the newly elected government …

Posted on 12/24/15 | 6:41 AM CEST

Roman

Very good analysis. Sobering.

Posted on 12/24/15 | 1:29 PM CEST

Marcel

Another opponent of democracy (lover of unelected EU Politburo/Commission) upset that elected politicians do something for which they were electes.

What is it with these pro EU types and their contempt for democracy and elections.

Posted on 12/24/15 | 2:19 PM CEST

Hektor

Good analysis.

Posted on 12/24/15 | 6:03 PM CEST

rex

The author with the article hits the nail on the head. 25 years of progress in democracy, culture and economy is about to be dismantled by resentful, delusional and out-of-touch flock, manipulated by clever demagogue and supported by Catholic Church. It is a revenge of the losers, deadbeats, good-for-nothing, might-have beens, dimwits and the likes. To say the least they are the sort of people found on margins in every country but kept in check by educated and successful middle class. The new Polish middle class, still immature, got fooled.
They voted in PiS, on the wave of anger and vengeance toward Civil Platform ( which is partially responsible for the mess). PiS brutally and quickly proceeded to redo the system to ensure they will be in power for a long time.
It is a sign that democracy in central Europe is in its infancy yet. People vote emotionally not intellectually and the system is still fragile to withstand an assault of cynical, driven and brutal politicians.
The only thing that can stop the insult and the onslaught is international pressure.

Posted on 12/24/15 | 8:37 PM CEST

bogdan

This article is heavily biased in favor of the powers who have ruled Poland for the majority of the 26 years since 1989. The reality of the situation is a political power struggle and neither side have or are playing according to gentlemanly rules. To suggest that democracy, according to Poland’s post 1989 standards, is being undermined is a gross exaggeration and totally hypocritical. Unfortunately, when one party gains power in Poland, it purges the top posts and installs its own supporters with a knock on effect lower down, and this has been the reality for all parties that have come to power. The Civic Platform lost the recent elections in a democratic vote, due to perceived nepotism, corruption and indolence and if Kaczynski’s party manage to tick even half these boxes, they will democratically lose the next election in four years’ time. However, it is the first time that a conservative and truly anti-communist party have held a stable majority since 1989. Kaczynski’s Law and Justice PiS, are also promising to stem the flow of untaxed money out of Poland. Hence, they will have a motley but formidable alliance of banks, corporations Poland’s “elite” and ironically, EUs left wing opposing and discrediting them. The next bastion that will be purged will be Poland’s heavily biased anti-conservative media and then many pro-“elite” journalists will find themselves unemployed. Will they complain in the western media? Were they or the author protesting when the formerly conservative Rzeczpospolita newspaper was being purged and its journalists were being sacked for questioning the Civic Platform? I believe not. Many wrongs do not make things right but standards have been set for 26 years and there has been a cold civil political war since Kaczynski first won the election in 2005.

Posted on 12/25/15 | 12:13 AM CEST

Knight

The article is a disgrace. The truth about PO’s rule and the author ‘objectivity’ lies in the sentence he uses: ‘There are 10 uncontested judges’.
First these are PO judges (!), the battle was only about about 5 judges. The truth is that PO destroyed the impartiality of the Tribunal by grabbing 10 judges when they were in power. We know they wanted to have all 15 judges. So this is democracy by the author and PO.
What does the author want? The PO to rule for the next 200 years? They had already ruled for 8 years and this was a very corrupt rule. Change is democratic.
Of course people like the author and other postcommunists do not really need PO. After all the postcommunists thanks to PO had security services in their hands before PiS victory. So the modus opearandi of the security services WAS (luckily) like this: if our guys in power have no chance to win again under the current logo, for example that of PO, let’s create for our guys a new party. This is how PO came into existence in 2000w, this is how Nowoczesna came into existence in 2015. Both parties were created a few months before the elections to bank on the novelty factor. Someone financed this operation. This worked for a while, but it will not work anymore. The people now know that this was all the security services game. Now PiS controls the security service so the old game will be dead. And this is what explains all the squeal when PiS changed the security service management, which it had the right to do.

Axel

SAVE, Europe !!!

The tragic and funny features coup in Poland:

Blocking the work of the Constitutional Court.
Ignoring the president of the constitutional tasks, which could weaken the position of his party.
Censorship of manners in theaters.
The vote in parliament, which the opposition wins are invalidated and repeated, chairman of parliament boorish manner receives voice opposition.
Ministers and important people in the country are common criminals (fuel thief, a persecutor of the opposition during the communist era, the agents of the communist secret police, people convicted for the preparation of evidence, those that led to the Polish agents working in Iraq and Afghanistan to the Taliban to the slaughter !!!!! )
The former premises by the opposition parties are subjected to exorcisms !!!!.
Television journalists are beaten with impunity demonstrations ruling party.
The ruling openly declare that they can break the law, what counts more is the “good of the nation”.
Liquidation of independent prosecutors.
Public folding tributes radical Catholic priests.
Persecution of some opposition activists.

People !!!! Europeans !!!! Poland is in the European Union !!!! And such things can tolerate !!!

Someone has to react !!! Someone has to punch his fist on the table !!! Here it was established grim dictatorship of Noriega’s style or Lukashenko!

Do not let them tell you that they wanted the Poles !!

Posted on 12/25/15 | 12:41 PM CEST

Kamil

“Indeed, without accepting the illegal appointees, the Court will not even be able to challenge the increase in the quorum itself.
The law will go into effect immediately after publication — an unprecedented move in Polish constitutional tradition. Since every law is binding until the Court finds it unconstitutional, the decision on the amendment’s constitutionality will itself require the panel of at least 13 judges.”

Strictly speaking, this is not truth. Constitution explicitly states that judges of the Constitutional Tribunal are bound exclusively by the Constitution, not the acts of the parliament. Therefore, even if the Tribunal will make a judgement in spite of the requirements specified by new act, it will be still a valid and binding judgement.

Posted on 12/25/15 | 9:46 PM CEST

Anonymous

Democracy is a joke if it can not defend that national interest. Democracy seems to be in constant regression and paralysis of the native culture and people. It always winds up like France, a multicultural cesspool of racist hate where the national goals are subjected to political correctness and dictates from abroad. Poles reject that kind of democracy, even most of the ones who protested at recent rallies against PIS reject that kind of “democracy”. The problem is the media sugarcoats the failures of “democracy” and blinds people from recognizing that ultimately that is the path their being led down. Which is a genocidal and suicidal path. PIS recognizes it and isn’t blinded by all the media manipulation and rhetoric of how goods things were yesterday and how much better things could become if we just continue down that path. National traitors are upset. The common man, woman, and child that may support the opposition aren’t traitors just misled. The traitors are those with power who know what disastrous path they plan on leading the innocent and helpless Poles down. The national traitors are the wolves routeing the sheep to their slaughter.

Posted on 12/25/15 | 10:28 PM CEST

Anna

I’m a lesbian and there is nothing more that Poland hates than women, gays, atheists and non-Poles. I told my parents that I’m moving out if they win. My parents are, like many Poles, farmers living in a rular area who don’t bother thinking for themselves. They voted for PiS even though they know that PiS literally advocates for killing and correctively raping people like me. I said enough is enough. I don’t feel safe in my own house because of this, so I decided to cut them off and move out this year.

Posted on 12/26/15 | 1:57 AM CEST

Anonymous

Anna

You left Poland because you’re a self-hurter who doesn’t like to contribute to society and whose only goal as a feminist is to turn more beautiful Polish women into mental slaves so they can participate in homosexual orgies with you and not have babies. You’re the definition of a waste of life sadly, but you don’t even see it (even sadder). I hope that you will stop being led astray by those who poison the minds to turn brother against brother and sister against sister. Stop being an agent of others who manipulate your mind to do bad things against your nation who make you hurt yourself and commit genocide against yourself by not having any future Polish babies.

How you could hate your own Polish people is beyond me. What happened early in your life that made your so dedicated to hating those (non-tolerant) people who only want to protect and make sure the Polish nation has a future?

You should be ashamed of being used and manipulated like this, but more so you should be shamed of your self-hate and racism against your own people.

@Anna
While I understand that it is not easy to be a lesbian and (I presume) suffer from lack of acceptance from your parents, I think you are grossly exaggerating the negative attitude of the Polish society and the current government. “PiS literally advocates for killing and correctively raping people like me” sounds plainly like a hateful lie. Would you care to back up your statement with some evidence? Also, your statement “My parents are, like many Poles, farmers living in a rural area who don’t bother thinking for themselves” is insultive to majority of Polish voters. I suspect that you know your parents and can make a judgment about their cognitive ability but I assure you that those Poles who voted for PiS knew very well what they were doing and we need to respect their choice.

Posted on 12/26/15 | 2:14 PM CEST

Veritas-Semper

Mr. Kisilowski continues to spread hysteria.

For the previous 8 years, The Civic Platform held absolute power in Poland (all of the government and its institutions, the parliament, the presidency, the Tribunal Court, government friendly media, and a “very cozy relationship” with the business establishment. It disregarded nearly 50 of the Tribunal Court’s rulings. Was there an outcry in the Western media that democracy in Poland was failing? No.

Italy’s Tribunal Court was paralyzed for the past 18 months. Did the Western media accuse Italy of a failed democracy? No.

The sky is not falling, Mr. Kisilowski.

What has changed is that the Polish nation turned the corrupt Civic Platform on its ear in a democratic election with the Law and Justice party moving swiftly to implement its campaign promises. And, the Civic Platform, the former party in power, cannot stand it. It is incapable of behaving in a democratic manner as expected of the opposition in any democratic society. Instead, they (and you) are stirring up media hysteria because the corruption at the public trough has ended for them. That is the simple truth.

The term ‘Targowica’ is the most fitting for this shameful behavior.

Posted on 12/27/15 | 3:52 AM CEST

Mirson

It’s very worrying if one thinks through the possible motivations of the attack on the constitutional court, the way the author does. I’m just not sure it’s “legal trickery” if the court finds a legal justification for refusing to recognize a blatantly unconstitutional law. For example, the constitution stipulates majority voting in the court, while the law requires 2/3 supermajority. Probably the ruling party will continue to disregard the rulings of the court. Still, it’s important for the court to continue to defend the constitution, if only for the symbolic value. Symbols matter in this struggle of ideas.

Posted on 12/27/15 | 9:02 AM CEST

Mirson

Maybe the sky is not falling, but the ruling party is leading Poland away from constitutional democracy. The argument about the about 50 Constitutional Tribunal rulings that were supposedly ignored by the previously ruling coalition is bogus. Those rulings concern relatively minor issues, like Proper Procedures for Creating Contracts Pertaining to Apartments Owned by Cooperatives. They mostly don’t pertains to laws, but ministerial directives or declarations issued by the parliament. In many cases there was no reason to rush with implementing the rulings, as the Tribunal allowed the unconstitutional provisions to remain in force until the final months of 2015. The previous parliament simply had legislative priorities, but it was implementing the rulings successively. This is shown by the fact that all the rulings from 2007, 2008, and 2009 have been implemented.

Posted on 12/27/15 | 9:10 AM CEST

Steve

This tendentious and selective propaganda piece does not mention that ALL the previous judges in question retired AFTER the election and thus should democratically have been replaced by ones chosen by the new parliament, something which was only foiled by the previous one passing a last-minute law to enable the outgoing regime to appoint them instead, an attempted judicial coup intended to stack the court overwhelmingly with PO appointments to prevent the new government elected in a landslide from ever being able to pass any significant legislation, and to create a constitutional crisis and instability from day one of the new regime. One can scarcely imagine a more discreditable or undemocratic action, and the new PiS government is 100% justified to undo such a shocking and treacherous piece of trickery by the previous PO regime.

Posted on 12/28/15 | 7:21 PM CEST

wot

No. The Polish democracy is not crumbling. It is the Polish establishment that is crumbling. The group of privileged people who had “good connections” in the previous system and who keep them in the current one. Those people may formally belong to different parties, have different views on minor issues but there’s one thing in common. They will be defending the status quo because losing it will mean losing the power and money.

Posted on 12/30/15 | 12:52 PM CEST

Wot Wot

Mr Kisilowski, yours is a very interesting view. You deny a party which won the elections (by a large margin) to implement their own ideas? Isn’t it a joke? What do you suggest? To impose an embargo on Poland (excluding your salary, of course)? Or better a military intervention?
No. Democracy in Poland is not crumbling. It’s the privileged establishment with “good connections” that is crumbling.

Posted on 12/30/15 | 1:05 PM CEST

Polish guy

My posts mysteriously disappear from this page. Needless to say, they are highly critical of the article. No reaction to my EMails to the editor.and press room Is this the true face of “people’s democracy” advocated by Politico and its writers?

Posted on 12/31/15 | 4:32 AM CEST

miki

To the good people of the West, Contrary to the alarmist media reports we, the free citizens of Poland, want to reassure you that in Poland today there are no threats to democracy. The mainstream media in the West, taking cues from the Polish mainstream press and those connected to the last government (recently ejected from office for corruption) continue to criticise the current freshly, democratically elected government and deliver incomplete accounts of the actions on the ground.

Posted on 1/1/16 | 2:45 AM CEST

lexi

Yes…EU show your true colors and hatred of the Polish people by attacking them!

Posted on 1/4/16 | 4:20 AM CEST

Qkiel

Bzdury; wstyd że to Polak pisze!

Posted on 1/26/16 | 12:12 AM CEST

The Ghost Writer

Dr (assistant professor) Kisilowski – you are bravely trying to defend Poland from a coup d’etat in 2019, to prevent a series of government’s illegal actions to happen in 2019. Could I ask where do you know about these from? Could I ask what makes you so certain that they will happen? How can you see the future in such a detail and with such a certainty? Would it be highly inappropriate that I indicate to you that you provide no analysis of the relevant past legal facts, that you are so silent on the multiple breaches of the Constitution by the former government? Please discuss the Act of 25 June 2015 that breached the Constitution and the parliamentary customs. Discuss the violations of the constitutional law by the past government, and do not try to make those illegal acts seem as the “law” to which the new government should abide.